People v. Knowles

Decision Date17 February 1981
Docket NumberNo. 2000,2000
Citation79 A.D.2d 116,436 N.Y.S.2d 25
PartiesThe PEOPLE, etc., Respondent, v. Vincent KNOWLES, Appellant. (Ind./78).
CourtNew York Supreme Court — Appellate Division

J. Mitchell Rosenberg, Brooklyn, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Marc David Orloff, Kew Gardens, of counsel), for respondent.

Before DAMIANI, J. P., and O'CONNOR, WEINSTEIN and THOMPSON, JJ.

WEINSTEIN, Justice.

Paragraph (b) of subdivision 2 of section 160.10 of the Penal Law provides that a person is guilty of robbery in the second degree if he forcibly steals property and if, in the course of the commission of the crime, he "(d)isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm." We hold today that if a person who is in fact unarmed commits a robbery and, in the course thereof, positions his hand in his pocket in a manner that is intended to convey to his victim the impression that he is holding a firearm, that said person has committed robbery in the second degree within the meaning of the statute quoted above.

The facts herein can be briefly stated. Defendant, Vincent Knowles, was indicted inter alia on one count of robbery in the first degree. When he appeared before the court to plead guilty to the reduced charge of robbery in the second degree, he admitted that on October 14, 1978, he stole United States currency, a wallet, jewelry, and two subway tokens from one Henry Laylock. Defendant further admitted that in order to persuade Laylock to surrender his property, he held his hand in his pocket in a manner which was meant to, and presumably did, convey to Laylock the impression that Knowles had a gun. In fact, however, Knowles was not armed. The trial court accepted the plea, and this court is now asked to determine whether the acts which Knowles admitted doing constitute the crime of robbery in the second degree.

We note at the outset that although the method which Knowles adopted in order to facilitate his criminal ends is by no means unique, there appear to be no cases reported in this State which address this issue. 1 Therefore, although the question was not raised at Criminal Term, and hence has not been preserved for appellate review (see People v. Warren, 47 N.Y.2d 740, 417 N.Y.S.2d 251, 390 N.E.2d 1175), we exercise our discretionary power to determine the issue.

Our consideration of this issue must begin, of course, with that provision of the Penal Law which sets forth how its other provisions should be construed. The provisions of the Penal Law "must be construed according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law, § 5.00). What is the "fair import" of the terms of the statute under consideration? The language of the statute itself refers to a person who "(d)isplays what appears to be" a firearm during the robbery. It could be argued that since Knowles actually displayed nothing, keeping his hand in his pocket at all times, his conduct could not possibly be construed to fall within the provisions of the statute. We read the statute differently, however, emphasizing the word "appears" rather than the word "displays". Thus, Knowles did display something namely, his concealed hand and the concealed hand which he displayed did appear to the victim to be a firearm. Accordingly, the fair import of the literal wording of the statute leads us to conclude that the acts which Knowles admitted doing constitute robbery in the second degree.

Section 5.00 of the Penal Law also bids us to "promote justice and effect the objects of the law" when construing penal statutes. However, the objects of the law under consideration are not evident from its face, and in order to ascertain those objects it is necessary to pause for a brief discussion of statutory and case law history.

Prior to the enactment of the revised, current Penal Law (L.1965, ch. 1030), the only reference to weapons or firearms in the robbery statutes was in subdivision 1 of section 2124 of the former Penal Law, which defined robbery in the first degree as robbery by a person "armed with a dangerous weapon". The term "dangerous weapon" was not defined in the former Penal Law, but the courts consistently held that robbery with an unloaded or inoperable gun did not constitute robbery "with a dangerous weapon", and consequently, such a robbery could be deemed to fall only within the catch-all third degree robbery statute, section 2128 of the former Penal Law (see People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573; People v. Dade, 15 A.D.2d 629, 222 N.Y.S.2d 154; People v. King, 13 A.D.2d 997, 216 N.Y.S.2d 755). This principle was overturned by the Court of Appeals in People v. Roden (21 N.Y.2d 810, 288 N.Y.S.2d 638, 235 N.E.2d 776), which held that an unloaded gun was indeed a "dangerous weapon" for purposes of the former Penal Law. 2 However, the Roden decision became academic, because even before it was decided, the Legislature had enacted the current Penal Law, giving the old rule as to unloaded or inoperable guns a statutory basis. Specifically, the only mention of firearms in the current Penal Law, as originally enacted, was subdivision 2 of section 160.15, declaring a person guilty of robbery in the first degree if he is "armed with a deadly weapon" during the robbery. The term "deadly weapon" was originally defined, insofar as is relevant here, as "any loaded weapon from which a shot may be discharged by gunpowder", in what is now subdivision 12 of section 10.00 of the Revised Penal Law (L.1965, ch. 1030). This definition was amended two years later to read: "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged" (L.1967, ch. 791, § 1). Clearly then, as of 1967, robbery with an unloaded or inoperable gun still was not first degree robbery but, rather, remained punishable only under the catch-all third degree robbery statute (Penal Law, § 160.05).

Subsequently, in response to the increased use of firearms during the commission of robberies and burglaries, and in order to increase the penalties for the use of both unloaded or inoperable guns and of guns which the prosecution could not prove to be loaded and operable during the commission of these crimes (see Governor's Memorandum, McKinney's Session Laws of N.Y., 1969, p. 2566), the Legislature added two provisions dealing with firearms to the robbery statutes (L.1969, ch. 1012, §§ 3, 4). One of these provisions, the current subdivision 4 of section 160.15 of the Penal Law, in effect created a presumption that a firearm displayed during a robbery was a deadly weapon, and hence made the crime punishable as first degree robbery. The same subdivision placed the burden on the defendant to prove, as an affirmative defense, that the firearm was not a deadly weapon, as defined in the Penal Law; 3 but it also provided that a defendant who established this defense could still be liable for second degree robbery, not merely third degree robbery as in the past. The other provision enacted by the Legislature in 1969 included the clause under consideration herein, paragraph (b) of subdivision 2 of section 160.10 of the Penal Law, which provided that the display during a robbery of what appeared to be a firearm, including inoperable and unloaded guns, would raise the robbery to the second degree.

The upshot of all this was that robbery with an unloaded or inoperable gun was raised from third to second degree robbery. It is now well established that robbery with an unloaded or inoperable gun is robbery in the second degree (see People v. Iglesias, 40 A.D.2d 778, 337 N.Y.S.2d 740; People v. Santucci, 48 A.D.2d 909, 369 N.Y.S.2d 490; People v. Castaldo, 72 A.D.2d 568, 420 N.Y.S.2d 742).

Reverting now to the issue before the court, we may infer that the primary "objects of the law" (namely, the objects of paragraph (b) of subdivision 2 of section 160.10 of the Penal Law) were to provide a middle level of severity for robbery with an unloaded or inoperable firearm, less than for robbery with a loaded, operable firearm, but greater than for a completely unarmed robbery. Evidently, the Legislature was of the view that a robber's inducing the victim to believe that the robber is armed, even though the robber may in fact be unable to shoot the victim with the firearm, was an aggravating circumstance sufficient to raise the degree of the robbery above the lowest degree, albeit not to the highest. We perceive no distinction between an instance where this belief is induced by a plainly displayed, though inoperable, gun, and an instance where this belief is induced by a concealed hand which a frightened victim understandably believes to be a gun. Both are harmless; but both are terrifying. Accordingly, Vincent Knowles' actions are included within the scope of the second degree robbery statute.

A review of cases decided by sister states regarding this issue is enlightening. In State v. Young (134 W.Va. 771, 61 S.E.2d 734) the defendant approached a woman sitting at her desk in her office. The defendant placed his hand in his hip pocket, giving the impression that he had a gun, and ordered her to move away from the desk. Believing the defendant to be armed, the victim obeyed and allowed the defendant to take more than $800 from the desk. The defendant, in fact, was unarmed. Nevertheless, the court held him liable under the armed robbery provisions of the West Virginia Code.

In State v. Elam (312 So.2d 318 (La.)) the defendants confronted a store manager and threatened to shoot him if he did not relinquish to them the contents of his safe. The manager obliged the defendants. One of the defendants kept one of his hands inside his jacket pocket at all times, and gestured with the hand in a way which indicated that he had a weapon in his pocket. Even though the victim at no time actually saw a gun, and none was recovered by the...

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    ...had "made like I had a gun in a paper bag." The defendant in the case before us has given no such testimony. In People v. Knowles, 79 App.Div.2d 116, 117, 436 N.Y.S.2d 25 (1981), the defendant admitted holding his hand in his pocket in a manner "which was meant to," and presumably did, "con......
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